REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9052 OF 2012
(Arising out of SLP (C) No.20217 of 2011)
Bihar Public Service Commission ... Appellant
Versus
Saiyed Hussain Abbas Rizwi & Anr. ... Respondents
J U D G M E N T
Swatanter Kumar, J.
1. Leave granted.
2. The Bihar Public Service Commission (for short, ‘the Commission)
published advertisement No.6 of 2000 dated 10th May, 2000 in the local
papers of the State of Bihar declaring its intention to fill up the posts
of ‘State Examiner of Questioned Documents’, in Police Laboratory in Crime
Investigation Department, Government of Bihar, Patna. The advertisement,
inter alia, stated that written examination would be held if adequate
number of applications were received. As very limited number of
applications were received, the Commission, in terms of the advertisement,
decided against the holding of written examination. It exercised the
option to select the candidates for appointment to the said post on the
basis of viva voce test alone. The Commission completed the process of
selection and recommended the panel of selected candidates to the State of
Bihar.
3. One Saiyed Hussain Abbas Rizwi, respondent No.1 herein, claiming to
be a public spirited citizen, filed an application before the Commission
(appellant herein) under the Right to Information Act, 2005 (for short “the
Act”) on 16th December, 2008 seeking information in relation to eight
queries. These queries concerned the interview which was held on 30th
September, 2002 and 1st October, 2002 by the Commission with regard to the
above advertisement. These queries, inter alia, related to providing the
names, designation and addresses of the subject experts present in the
Interview Board, names and addresses of the candidates who appeared, the
interview statement with certified photocopies of the marks of all the
candidates, criteria for selection of the candidates, tabulated statement
containing average marks allotted to the candidates from matriculation to
M.Sc. during the selection process with the signatures of the
members/officers and certified copy of the merit list. This application
remained pending with the Public Information Officer of the Commission for
a considerable time that led to filing of an appeal by respondent No.1
before the State Information Commission. When the appeal came up for
hearing, the State Information Commission vide its order dated 30th April,
2009 had directed the Public Information Officer-cum-Officer on Special
Duty of the Commission that the information sought for be made available
and the case was fixed for 27th August, 2009 when the following order was
passed :
“The applicant is present. A letter dated 12.08.2009 of the
Public Information Officer, Bihar Public Service Commission,
Patna has been received whereby the required paragraph-wise
information which could be supplied, has been given to the
applicant. Since the information which could be supplied has
been given to the applicant, the proceedings of the case are
closed.”
4. At this stage, we may also notice that the Commission, vide its
letter dated 12th August, 2009, had furnished the information nearly to all
the queries of respondent No.1. It also stated that no written test had
been conducted and that the name, designation and addresses of the members
of the Interview Board could not be furnished as they were not required to
be supplied in accordance with the provisions of Section 8(1)(g) of the
Act.
5. Aggrieved from the said order of the Information Commission dated
27th August, 2009, respondent No.1 challenged the same by filing a writ
before the High Court of Judicature at Patna. The matter came up for
hearing before a learned Judge of that Court, who, vide judgment dated 27th
November, 2009 made the following observations and dismissed the writ
petition :
“If information with regard to them is disclosed, the secrecy
and the authenticity of the process itself may be jeopardized
apart from that information would be an unwarranted invasion
into privacy of the individual. Restricting giving this
information has a larger public purpose behind it. It is to
maintain purity of the process of selection. Thus, in view of
specific provision in Section 8(1)(j), in my view, the
information could not be demanded as matter of right. The
designated authority in that organization also did not consider
it right to divulge the information in larger public interest,
as provided in the said provision.”
6. Feeling aggrieved, respondent No.1 challenged the judgment of the
learned Single Judge before the Division Bench of that Court by filing a
letters patent appeal being LPA No.102 of 2010. The Division Bench,
amongst others, noticed the following contentions :
(i) that third party interest was involved in providing the
information asked for and, therefore, could properly be denied in
terms of Section 2(n) read with Sections 8(1)(j) and 11 of the Act.
(ii) that respondent No.1 (the applicant) was a mere busybody and not
a candidate himself and was attempting to meddle with the affairs of
the Commission needlessly.
7. The Division Bench took the view that the provisions of Section
8(1)(j) were not attracted in the facts of the case in hand inasmuch as
this provision had application in respect of law enforcement agency and for
security purposes. Since no such consideration arose with respect to the
affairs of the Commission and its function was in public domain, reliance
on the said provision for denying the information sought for was not
tenable in law. Thus, the Court in its order dated 20th January, 2011
accepted the appeal, set aside the order of the learned Single Judge and
directed the Commission to communicate the information sought for to
respondent No.1. The Court directed the Commission to provide the names of
the members of the Interview Board, while denying the disclosure of and
providing photocopies of the papers containing the signatures and addresses
of the members of the Interview Board.
8. The Commission challenging the legality and correctness of the said
judgment has filed the present appeal by way of special leave.
9. The question that arises for consideration in the present case is as
to whether the Commission was duty bound to disclose the names of the
members of the Interview Board to any person including the examinee.
Further, when the Commission could take up the plea of exemption from
disclosure of information as contemplated under Section 8 of the Act in
this regard.
10. Firstly, we must examine the purpose and scheme of this Act. For
this purpose, suffice would it be to refer to the judgment of this Court in
the case of Namit Sharma v. Union of India [2012 (8) SCALE 593], wherein
this Court has held as under :
“27. In terms of the Statement of Objects and Reasons of the
Act of 2002, it was stated that this law was enacted in order to
make the government more transparent and accountable to the
public. It was felt that in the present democratic framework,
free flow of information for citizens and non-Government
institutions suffers from several bottlenecks including the
existing legal framework, lack of infrastructure at the grass
root level and an attitude of secrecy within the Civil Services
as a result of the old framework of rules. The Act was to deal
with all such aspects. The purpose and object was to make the
government more transparent and accountable to the public and to
provide freedom to every citizen to secure access to information
under the control of public authorities, consistent with public
interest, in order to promote openness, transparency and
accountability in administration and in relation to matters
connected therewith or incidental thereto.”
11. The scheme of the Act contemplates for setting out the practical
regime of right to information for citizens to secure access to information
under the control of public authorities, in order to promote transparency
and accountability in the working of every public authority. It was aimed
at providing free access to information with the object of making
governance more transparent and accountable. Another right of a citizen
protected under the Constitution is the right to privacy. This right is
enshrined within the spirit of Article 21 of the Constitution. Thus, the
right to information has to be balanced with the right to privacy within
the framework of law.
12. Where Section 3 of the Act grants right to citizens to have access to
information, there Section 4 places an obligation upon the public
authorities to maintain records and provide the prescribed information.
Once an application seeking information is made, the same has to be dealt
with as per Sections 6 and 7 of the Act. The request for information is to
be disposed of within the time postulated under the provisions of Section 7
of the Act. Section 8 is one of the most important provisions of the Act
as it is an exception to the general rule of obligation to furnish
information. It gives the category of cases where the public authority is
exempted from providing the information. To such exemptions, there are
inbuilt exceptions under some of the provisions, where despite exemption,
the Commission may call upon the authority to furnish the information in
the larger public interest. This shows the wide scope of these provisions
as intended by the framers of law. In such cases, the Information
Commission has to apply its mind whether it is a case of exemption within
the provisions of the said section.
13. Right to information is a basic and celebrated fundamental/basic
right but is not uncontrolled. It has its limitations. The right is
subject to a dual check. Firstly, this right is subject to the
restrictions inbuilt within the Act and secondly the constitutional
limitations emerging from Article 21 of the Constitution. Thus, wherever
in response to an application for disclosure of information, the public
authority takes shelter under the provisions relating to exemption, non-
applicability or infringement of Article 21 of the Constitution, the State
Information Commission has to apply its mind and form an opinion
objectively if the exemption claimed for was sustainable on facts of the
case.
14. Now, we have to examine whether the Commission is a public authority
within the meaning of the Act. The expression ‘public authority’ has been
given an exhaustive definition under section 2(h) of the Act as the
Legislature has used the word ‘means’ which is an expression of wide
connotation. Thus, ‘public authority’ is defined as any authority or body
or institution of the Government, established or constituted by the
Government which falls in any of the stated categories under Section 2(h)
of the Act. In terms of Section 2(h)(a), a body or an institution which is
established or constituted by or under the Constitution would be a public
authority. Public Service Commission is established under Article 315 of
the Constitution of India and as such there cannot be any escape from the
conclusion that the Commission shall be a public authority within the scope
of this section.
15. Section 2(f) again is exhaustive in nature. The Legislature has
given meaning to the expression ‘information’ and has stated that it shall
mean any material in any form including papers, samples, data material held
in electronic form, etc. Right to information under Section 2(j) means the
‘right to information’ accessible under this Act which is held by or under
the control of any public authority and includes the right to inspection of
work, documents, records, taking notes, extracts, taking certified sample
of materials, obtaining information in the form of diskettes, floppies and
video cassettes, etc. The right sought to be exercised and information
asked for should fall within the scope of ‘information’ and ‘right to
information’ as defined under the Act.
16. Thus, what has to be seen is whether the information sought for in
exercise of right to information is one that is permissible within the
framework of law as prescribed under the Act. If the information called
for falls in any of the categories specified under Section 8 or relates to
the organizations to which the Act itself does not apply in terms of
section 24 of the Act, the public authority can take such stand before the
commission and decline to furnish such information. Another aspect of
exercise of this right is that where the information asked for relates to
third party information, the Commission is required to follow the procedure
prescribed under Section 11 of the Act.
17. Before the High Court, reliance had been placed upon Section 8(1)(j)
and Section 11 of the Act. On facts, the controversy in the present case
falls within a very narrow compass. Most of the details asked for by the
applicant have already been furnished. The dispute between the parties
related only to the first query of the applicant, that is, with regard to
disclosure of the names and addresses of the members of the Interview
Board.
18. On behalf of the Commission, reliance was placed upon Section 8(1)(j)
and Section 11 of the Act to contend that disclosure of the names would
endanger the life of the members of the interview board and such disclosure
would also cause unwarranted invasion of the privacy of the interviewers.
Further, it was contended that this information related to third party
interest. The expression ‘third party’ has been defined in Section 2(n) of
the Act to mean a person other than the citizen making a request for
information and includes a public authority. For these reasons, they were
entitled to the exemption contemplated under Section 8(1)(j) and were not
liable to disclose the required information. It is also contended on
behalf of the Commission that the Commission was entitled to exemption
under Sections 8(1)(e) and 8(1)(g) read together.
19. On the contrary, the submission on behalf of the applicant was that
it is an information which the applicant is entitled to receive. The
Commission was not entitled to any exemption under any of the provisions of
Section 8, and therefore, was obliged to disclose the said information to
the applicant.
20. In the present case, we are not concerned with the correctness or
otherwise of the method adopted for selection of the candidates. Thus, the
fact that no written examination was held and the selections were made
purely on the basis of viva voce, one of the options given in the
advertisement itself, does not arise for our consideration. We have to
deal only with the plea as to whether the information asked for by the
applicant should be directed to be disclosed by the Commission or whether
the Commission is entitled to the exemption under the stated provisions of
Section 8 of the Act.
21. Section 8 opens with the non obstante language and is an exception to
the furnishing of information as is required under the relevant provisions
of the Act. During the course of the hearing, it was not pressed before us
that the Commission is entitled to the exemption in terms of Section
8(1)(j) of the Act. In view of this, we do not propose to discuss this
issue any further nor would we deal with the correctness or otherwise of
the impugned judgment of the High Court in that behalf.
22. Section 8(1)(e) provides an exemption from furnishing of information,
if the information available to a person is in his fiduciary relationship
unless the competent authority is satisfied that larger public interest
warrants the disclosure of such information. In terms of Section 8(1)(g),
the public authority is not obliged to furnish any such information the
disclosure of which would endanger the life or physical safety of any
person or identify the source of information or assistance given in
confidence for law enforcement and security purposes. If the concerned
public authority holds the information in fiduciary relationship, then the
obligation to furnish information is obliterated. But if the competent
authority is still satisfied that in the larger public interest, despite
such objection, the information should be furnished, it may so direct the
public authority. The term ‘fiduciary’ refers to a person having a duty to
act for the benefit of another, showing good faith and condour, where such
other person reposes trust and special confidence in the person owing or
discharging the duty. The term ‘fiduciary relationship’ is used to describe
a situation or transaction where one person places complete confidence in
another person in regard to his affairs, business or transactions. This
aspect has been discussed in some detail in the judgment of this Court in
the case of Central Board of Secondary Education (supra). Section 8(1)(e),
therefore, carves out a protection in favour of a person who possesses
information in his fiduciary relationship. This protection can be negated
by the competent authority where larger public interest warrants the
disclosure of such information, in which case, the authority is expected to
record reasons for its satisfaction. Another very significant provision of
the Act is 8(1)(j). In terms of this provision, information which relates
to personal information, the disclosure of which has no relationship to any
public activity or interest or which would cause unwarranted invasion of
the privacy of the individual would fall within the exempted category,
unless the authority concerned is satisfied that larger public interest
justifies the disclosure of such information. It is, therefore, to be
understood clearly that it is a statutory exemption which must operate as a
rule and only in exceptional cases would disclosure be permitted, that too,
for reasons to be recorded demonstrating satisfaction to the test of larger
public interest. It will not be in consonance with the spirit of these
provisions, if in a mechanical manner, directions are passed by the
appropriate authority to disclose information which may be protected in
terms of the above provisions. All information which has come to the
notice of or on record of a person holding fiduciary relationship with
another and but for such capacity, such information would not have been
provided to that authority, would normally need to be protected and would
not be open to disclosure keeping the higher standards of integrity and
confidentiality of such relationship. Such exemption would be available
to such authority or department.
23. The expression ‘public interest’ has to be understood in its true
connotation so as to give complete meaning to the relevant provisions of
the Act. The expression ‘public interest’ must be viewed in its strict
sense with all its exceptions so as to justify denial of a statutory
exemption in terms of the Act. In its common parlance, the expression
‘public interest’, like ‘public purpose’, is not capable of any precise
definition . It does not have a rigid meaning, is elastic and takes its
colour from the statute in which it occurs, the concept varying with time
and state of society and its needs. [State of Bihar v. Kameshwar Singh
(AIR 1952 SC 252)]. It also means the general welfare of the public that
warrants recommendation and protection; something in which the public as a
whole has a stake [Black’s Law Dictionary (Eighth Edition)].
24. The satisfaction has to be arrived at by the authorities objectively
and the consequences of such disclosure have to be weighed with regard to
circumstances of a given case. The decision has to be based on objective
satisfaction recorded for ensuring that larger public interest outweighs
unwarranted invasion of privacy or other factors stated in the provision.
Certain matters, particularly in relation to appointment, are required to
be dealt with great confidentiality. The information may come to knowledge
of the authority as a result of disclosure by others who give that
information in confidence and with complete faith, integrity and fidelity.
Secrecy of such information shall be maintained, thus, bringing it within
the ambit of fiduciary capacity. Similarly, there may be cases where the
disclosure has no relationship to any public activity or interest or it may
even cause unwarranted invasion of privacy of the individual. All these
protections have to be given their due implementation as they spring from
statutory exemptions. It is not a decision simpliciter between private
interest and public interest. It is a matter where a constitutional
protection is available to a person with regard to the right to privacy.
Thus, the public interest has to be construed while keeping in mind the
balance factor between right to privacy and right to information with the
purpose sought to be achieved and the purpose that would be served in the
larger public interest, particularly when both these rights emerge from the
constitutional values under the Constitution of India.
25. First of all, the Court has to decide whether in the facts of the
present case, the Commission holds any fiduciary relationship with the
examinee or the interviewers. Discussion on this question need not detain
us any further as it stands fully answered by a judgment of this Court in
the case of Central Board of Secondary Education & Anr. v. Aditya
Bandopadhyay & Ors. [(2011) 8 SCC 497] wherein the Court held as under :
“40. There are also certain relationships where both the parties
have to act in a fiduciary capacity treating the other as the
beneficiary. Examples of these are: a partner vis-à-vis another
partner and an employer vis-à-vis employee. An employee who
comes into possession of business or trade secrets or
confidential information relating to the employer in the course
of his employment, is expected to act as a fiduciary and cannot
disclose it to others. Similarly, if on the request of the
employer or official superior or the head of a department, an
employee furnishes his personal details and information, to be
retained in confidence, the employer, the official superior or
departmental head is expected to hold such personal information
in confidence as a fiduciary, to be made use of or disclosed
only if the employee’s conduct or acts are found to be
prejudicial to the employer.
41. In a philosophical and very wide sense, examining bodies can
be said to act in a fiduciary capacity, with reference to the
students who participate in an examination, as a Government does
while governing its citizens or as the present generation does
with reference to the future generation while preserving the
environment. But the words “information available to a person in
his fiduciary relationship” are used in Section 8(1)(e) of the
RTI Act in its normal and well-recognised sense, that is, to
refer to persons who act in a fiduciary capacity, with reference
to a specific beneficiary or beneficiaries who are to be
expected to be protected or benefited by the actions of the
fiduciary—a trustee with reference to the beneficiary of the
trust, a guardian with reference to a minor/physically infirm/
mentally challenged, a parent with reference to a child, a
lawyer or a chartered accountant with reference to a client, a
doctor or nurse with reference to a patient, an agent with
reference to a principal, a partner with reference to another
partner, a Director of a company with reference to a
shareholder, an executor with reference to a legatee, a Receiver
with reference to the parties to a lis, an employer with
reference to the confidential information relating to the
employee, and an employee with reference to business
dealings/transaction of the employer. We do not find that kind
of fiduciary relationship between the examining body and the
examinee, with reference to the evaluated answer books, that
come into the custody of the examining body.
42. The duty of examining bodies is to subject the candidates
who have completed a course of study or a period of training in
accordance with its curricula, to a process of
verification/examination/testing of their knowledge, ability or
skill, or to ascertain whether they can be said to have
successfully completed or passed the course of study or
training. Other specialised examining bodies may simply subject
the candidates to a process of verification by an examination,
to find out whether such person is suitable for a particular
post, job or assignment. An examining body, if it is a public
authority entrusted with public functions, is required to act
fairly, reasonably, uniformly and consistently for public good
and in public interest.
43. This Court has explained the role of an examining body in
regard to the process of holding examination in the context of
examining whether it amounts to “service” to a consumer, in
Bihar School Examination Board v. Suresh Prasad Sinha in the
following manner: (SCC p. 487, paras 11-13)
“11. … The process of holding examinations, evaluating
answer scripts, declaring results and issuing certificates
are different stages of a single statutory non-commercial
function. It is not possible to divide this function as
partly statutory and partly administrative.
12. When the Examination Board conducts an
examination in discharge of its statutory function, it does
not offer its ‘services’ to any candidate. Nor does a
student who participates in the examination conducted by
the Board, hire or avail of any service from the Board for
a consideration. On the other hand, a candidate who
participates in the examination conducted by the Board, is
a person who has undergone a course of study and who
requests the Board to test him as to whether he has imbibed
sufficient knowledge to be fit to be declared as having
successfully completed the said course of education; and if
so, determine his position or rank or competence vis-à-vis
other examinees. The process is not, therefore, availment
of a service by a student, but participation in a general
examination conducted by the Board to ascertain whether he
is eligible and fit to be considered as having successfully
completed the secondary education course. The examination
fee paid by the student is not the consideration for
availment of any service, but the charge paid for the
privilege of participation in the examination.
13. … The fact that in the course of conduct of the
examination, or evaluation of answer scripts, or furnishing
of marksheets or certificates, there may be some
negligence, omission or deficiency, does not convert the
Board into a service provider for a consideration, nor
convert the examinee into a consumer….”
It cannot therefore be said that the examining body is in a
fiduciary relationship either with reference to the examinee who
participates in the examination and whose answer books are
evaluated by the examining body.
XXX XXX XXX
49. The examining body entrusts the answer books to an examiner
for evaluation and pays the examiner for his expert service. The
work of evaluation and marking the answer book is an assignment
given by the examining body to the examiner which he discharges
for a consideration. Sometimes, an examiner may assess answer
books, in the course of his employment, as a part of his duties
without any specific or special remuneration. In other words,
the examining body is the “principal” and the examiner is the
“agent” entrusted with the work, that is, the evaluation of
answer books. Therefore, the examining body is not in the
position of a fiduciary with reference to the examiner.”
(emphasis supplied)
26. We, with respect, would follow the above reasoning of the Bench and,
thus, would have no hesitation in holding that in the present case, the
examining body (the Commission), is in no fiduciary relationship with the
examinee (interviewers) or the candidate interviewed. Once the fiduciary
relationship is not established, the obvious consequence is that the
Commission cannot claim exemption as contemplated under Section 8(1)(e) of
the Act. The question of directing disclosure for a larger public
interest, therefore, would not arise at all.
27. In CBSE case (supra), this Court had clearly stated the view that an
examiner who examines the answer sheets holds the relationship of principal
and agent with the examining body. Applying the same principle, it has to
be held that the interviewers hold the position of an ‘agent’ vis-a-vis the
examining body which is the ‘principal’. This relationship per se is not
relatable to any of the exemption clauses but there are some clauses of
exemption, the foundation of which is not a particular relationship like
fiduciary relationship. Clause 8(1)(g) can come into play with any kind of
relationship. It requires that where the disclosure of information would
endanger the life or physical safety of any person or identify the source
of information or assistance given in confidence for law enforcement or
security purposes, the information need not be provided. The High Court
has rejected the application of Section 8(1)(g) on the ground that it
applies only with regard to law enforcement or security purposes and does
not have general application. This reasoning of the High Court is contrary
to the very language of Section 8(1)(g). Section 8(1)(g) has various
clauses in itself.
28. Now, let us examine the provisions of Section 8(1)(g) with greater
emphasis on the expressions that are relevant to the present case. This
section concerns with the cases where no obligation is cast upon the public
authority to furnish information, the disclosure of which would endanger
(a) the life (b) physical safety of any person. The legislature, in its
wisdom, has used two distinct expressions. They cannot be read or
construed as being synonymous. Every expression used by the Legislature
must be given its intended meaning and, in fact, a purposeful
interpretation. The expression ‘life’ has to be construed liberally.
‘Physical safety’ is a restricted term while life is a term of wide
connotation. ‘Life’ includes reputation of an individual as well as the
right to live with freedom. The expression ‘ life’ also appears in Article
21 of the Constitution and has been provided a wide meaning so as to inter
alia include within its ambit the right to live with dignity, right to
shelter, right to basic needs and even the right to reputation. The
expression life under section 8(1(g) the Act, thus, has to be understood in
somewhat similar dimensions. The term ‘endanger’ or ‘endangerment’ means
the act or an instance of putting someone or something in danger; exposure
to peril or such situation which would hurt the concept of life as
understood in its wider sense [refer Black’s Law Dictionary (Eighth
Edition)]. Of course, physical safety would mean the likelihood of assault
to physical existence of a person. If in the opinion of the concerned
authority there is danger to life or possibility of danger to physical
safety, the State Information Commission would be entitled to bring such
case within the exemption of Section 8(1)(g) of the Act. The disclosure of
information which would endanger the life or physical safety of any person
is one category and identification of the source of information or
assistance given in confidence for law enforcement or security purposes is
another category. The expression ‘for law enforcement or security
purposes’ is to be read ejusdem generis only to the expression ‘assistance
given in confidence’ and not to any other clause of the section. On the
plain reading of Section 8(1)(g), it becomes clear that the said clause is
complete in itself. It cannot be said to have any reference to the
expression ‘assistance given in confidence for law enforcement or security
purposes’. Neither the language of the Section nor the object of the
Section requires such interpretation. It would not further the cause of
this section. Section 8 attempts to provide exemptions and once the
language of the Section is unambiguous and squarely deals with every
situation, there is no occasion for the Court to frustrate the very object
of the Section. It will amount to misconstruing the provisions of the Act.
The High Court though has referred to Section 8(1)(j) but has, in fact,
dealt with the language of Section 8(1)(g). The reasoning of the High
Court, therefore, is neither clear in reference to provision of the Section
nor in terms of the language thereof.
29. Now, the ancillary question that arises is as to the consequences
that the interviewers or the members of the interview board would be
exposed to in the event their names and addresses or individual marks given
by them are directed to be disclosed. Firstly, the members of the Board
are likely to be exposed to danger to their lives or physical safety.
Secondly, it will hamper effective performance and discharge of their
duties as examiners. This is the information available with the examining
body in confidence with the interviewers. Declaration of collective marks
to the candidate is one thing and that, in fact, has been permitted by the
authorities as well as the High Court. We see no error of jurisdiction or
reasoning in this regard. But direction to furnish the names and addresses
of the interviewers would certainly be opposed to the very spirit of
Section 8(1)(g) of the Act. CBSE case (supra) has given sufficient
reasoning in this regard and at this stage, we may refer to paragraphs 52
and 53 of the said judgment which read as under :
“52. When an examining body engages the services of an examiner
to evaluate the answer books, the examining body expects the
examiner not to disclose the information regarding evaluation to
anyone other than the examining body. Similarly the examiner
also expects that his name and particulars would not be
disclosed to the candidates whose answer books are evaluated by
him. In the event of such information being made known, a
disgruntled examinee who is not satisfied with the evaluation of
the answer books, may act to the prejudice of the examiner by
attempting to endanger his physical safety. Further, any
apprehension on the part of the examiner that there may be
danger to his physical safety, if his identity becomes known to
the examinees, may come in the way of effective discharge of his
duties. The above applies not only to the examiner, but also to
the scrutiniser, co-ordinator and head examiner who deal with
the answer book.
53. The answer book usually contains not only the signature and
code number of the examiner, but also the signatures and code
number of the scrutiniser/co-ordinator/head examiner. The
information as to the names or particulars of the examiners/co-
ordinators/scrutinisers/head examiners are therefore exempted
from disclosure under Section 8(1)(g) of the RTI Act, on the
ground that if such information is disclosed, it may endanger
their physical safety. Therefore, if the examinees are to be
given access to evaluated answer books either by permitting
inspection or by granting certified copies, such access will
have to be given only to that part of the answer book which does
not contain any information or signature of the examiners/co-
ordinators/scrutinisers/head examiners, exempted from disclosure
under Section 8(1)(g) of the RTI Act. Those portions of the
answer books which contain information regarding the
examiners/co-ordinators/scrutinisers/head examiners or which may
disclose their identity with reference to signature or initials,
shall have to be removed, covered, or otherwise severed from the
non-exempted part of the answer books, under Section 10 of the
RTI Act.”
30. The above reasoning of the Bench squarely applies to the present case
as well. The disclosure of names and addresses of the members of the
Interview Board would ex facie endanger their lives or physical safety.
The possibility of a failed candidate attempting to take revenge from such
persons cannot be ruled out. On the one hand, it is likely to expose the
members of the Interview Board to harm and, on the other, such disclosure
would serve no fruitful much less any public purpose. Furthermore, the
view of the High Court in the judgment under appeal that element of bias
can be traced and would be crystallized only if the names and addresses of
the examiners/interviewers are furnished is without any substance. The
element of bias can hardly be co-related with the disclosure of the names
and addresses of the interviewers. Bias is not a ground which can be
considered for or against a party making an application to which exemption
under Section 8 is pleaded as a defence. We are unable to accept this
reasoning of the High Court. Suffice it to note that the reasoning of the
High Court is not in conformity with the principles stated by this Court in
the CBSE case (supra). The transparency that is expected to be maintained
in such process would not take within its ambit the disclosure of the
information called for under query No.1 of the application. Transparency
in such cases is relatable to the process where selection is based on
collective wisdom and collective marking. Marks are required to be
disclosed but disclosure of individual names would hardly hold relevancy
either to the concept of transparency or for proper exercise of the right
to information within the limitation of the Act.
31. For the reasons afore-stated, we accept the present appeal, set aside
the judgment of the High Court and hold that the Commission is not bound to
disclose the information asked for by the applicant under Query No.1 of the
application.
………...….………….......................J.
(Swatanter Kumar)
…..…………...................................J.
(Sudhansu Jyoti Mukhopadhaya)
New Delhi,
December 13, 2012
